93 Decision Citation: BVA 93-02634
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-56 345 ) DATE
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1. Whether there was clear and unmistakable error in the
June 1969 rating action denying service connection for a
psychiatric disability.
2. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
psychiatric disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The appellant, his wife, sister, and brother-in-law
ATTORNEY FOR THE BOARD
Jeffrey A. Pisaro, Associate Counsel
INTRODUCTION
The veteran had active service from January 4, 1967 to June
15, 1967. By rating action in June 1969, service connection
for a psychiatric disorder was denied. The veteran was
notified of that action by letter of the same month;
however, he did not file a timely appeal therefrom and that
action became final. Recently, the veteran requested that
his claim for service connection for a psychiatric disorder
be reopened, and he submitted additional evidence in support
thereof.
This matter came before the Board on appeal from an August
1990 rating decision of the Phoenix, Arizona, Regional
Office (hereinafter RO), which determined that new and
material evidence had not been submitted to reopen his claim
for service connection for a psychiatric disability, and the
veteran's claim remained denied. The notice of disagreement
was received in September 1990, the statement of the case
was issued in October 1990, and the substantive appeal was
received in October 1990. The veteran appeared and
testified at a November 1990 personal hearing at the RO.
The case was received and docketed at the Board in January
1991. Written argument on appeal was submitted in March
1991 by the American Legion, which has represented the
veteran throughout his appeal. The case was remanded by the
Board to the RO in June 1991 for additional development of
the evidence. A supplemental statement of the case was
issued in August 1991, and the case was received and
docketed at the Board in October 1991. Written argument on
appeal was submitted by the veteran's representative in
November 1991, which raised the issue of whether there was
clear and unmistakable error in the June 1969 rating
decision denying service connection for a psychiatric
disability.
The case was remanded by the Board to the RO in January 1992
for due process reasons. Following the issuance of a
supplemental statement of the case in February 1992, the
case was received and docketed at the Board in June 1992.
Additional written argument on appeal was submitted by the
veteran's representative in July 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO erred by failing to grant
service connection for a psychiatric disability which had
its onset in service. He asserts that there were no
preservice manifestations or diagnoses of a psychiatric
disability; multiple lay statements have been submitted to
support that contention. The appellant also takes issue
with the categorization of religious beliefs as evidencing a
mental disability.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
folder, and for the reasons and bases hereinafter set forth,
it is the decision of the Board that the June 1969 rating
decision was not clearly and unmistakably erroneous, and
that new and material evidence has been submitted to reopen
the veteran's claim for service connection for a psychiatric
disability; however, the cumulative evidence is against that
claim.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The RO denied entitlement to service connection for a
psychiatric disability by rating decision in June 1969 as it
was determined that the veteran's psychiatric disability
preexisted service and was not aggravated therein; that
decision was consistent with and supported by the evidence
of record. That decision was unappealed.
3. The additional evidence submitted since that time,
although new and material, does not demonstrate the onset of
a psychiatric disability during service or aggravation of
any preexisting disability.
CONCLUSIONS OF LAW
1. The unappealed rating decision of June 1969 denying
service connection for a psychiatric disability was not
clearly and unmistakably erroneous. 38 U.S.C.A. § 5107
(West 1991); 38 C.F.R. § 3.105(a) (1991).
2. Evidence received since the RO's June 1969 rating
decision is both new and material, and the veteran's claim
for service connection for a psychiatric disability has been
reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (1991).
3. The entire evidence of record shows that the veteran's
preexisting psychiatric disability was not aggravated by
service, and the 1969 decision denying service connection
for a psychiatric disability remains final. 38 U.S.C.A. §§
1110, 1111, 1137, 1153, 5107, 7105 (West 1991); 38 C.F.R. §§
3.104(a), 3.306 (1991); Board of Veterans' Appeals: Rules of
Practice, 57 Fed. Reg. 4112-13 (1992) (to be recodified at
38 C.F.R. § 20.302(a)).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran's claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a). That is, we find that he has
presented a claim which is plausible. We are also satisfied
that all relevant facts have been properly developed, and
that no further assistance is required to comply with the
duty to assist under 38 U.S.C.A. § 5107(a).
Under applicable criteria, service connection will be
granted for a disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110.
Veterans are presumed to be in sound medical condition at
the time of entry into service except for defects actually
noted when examined for entry into service. This
presumption of soundness can be rebutted by evidence which
clearly and unmistakably shows the existence of a disability
prior to service. 38 U.S.C.A. §§ 1111, 1137. If a
disability is found to exist prior to service, the question
becomes one of aggravation.
To establish aggravation, the evidence must show that the
disability increased in severity during service. Clear and
unmistakable evidence (obvious or manifest) is required to
rebut the presumption of aggravation where the preservice
disability underwent an increase in severity during wartime
service. This includes medical facts and principles which
may be considered to determine whether the increase is due
to the natural progress of the condition. Aggravation may
not be conceded where the disability underwent no increase
in severity during service on the basis of all the evidence
of record pertaining to the manifestations of the disability
prior to, during and subsequent to service. 38 U.S.C.A. §
1153; 38 C.F.R. § 3.306.
The evidence which was of record when the RO considered the
claim for service connection for a psychiatric disorder in
1969 may be briefly summarized. On the July 1966
pre-induction examination, the veteran reported that he had
no significant medical history. He further indicated that
he had no history of depression or excessive worry, or
nervous trouble of any sort. On examination, the veteran
was clinically evaluated as normal psychiatrically.
A January 9, 1967 dispensary treatment notation indicates
that the veteran was seen with an acute psychosis and he was
referred to the mental health clinic. A January 12, 1967
transfer summary from the Fort Ord U.S. Army Hospital shows
that the veteran had been sent to the mental health clinic
in restraints on an emergency basis in an acutely agitated
state. Due to the veteran's acutely delusional and agitated
state, it was noted that he was a poor historian, and he had
been admitted to the hospital. The veteran expressed many
delusions of a religious nature and he evidenced frequent
episodes of voluntary body tremors. He denied any previous
illness. On mental status examination, the veteran was
acutely agitated and somewhat belligerent and he had to be
placed in restraints. His affect was inappropriate, and
there was evidence of overt anxiety with delusions
manifested by loosening of associations. An organic battery
was essentially negative. The veteran was placed on
psychotropic medications.
The diagnosis was acute severe paranoid schizophrenic
reaction manifested by inappropriate affect, agitation,
aggressive behavior, delusions and loosening of associations
which existed prior to service. It was noted that the
veteran had performed routine military duty and the veteran
was transferred to Letterman General Hospital for more
definitive treatment and disposition.
A May 1967 Medical Board report indicates that the veteran
had been hospitalized at Fort Ord five days following
induction into service in a state of schizophrenic
decompensation. Most of the details of the veteran's past
history was supplied by his older sister as the veteran was
too disorganized to give details himself. During the
veteran's early childhood, his sister felt that he was quite
normal and had completed high school. Reportedly, the
veteran had made friends relatively easily and had
participated in activities, including sports. The sister
further reported that the veteran had become increasingly
interested in his church activities during the last years of
high school. The church was described as rather fundamental
and rigid although the veteran never evidenced inappropriate
behavior in spite of apparent strong convictions which were
conveyed to other family members. Following graduation, the
veteran had worked for six months without difficulty.
The veteran's mother had died approximately 15 years before,
and it was noted that the veteran preferred not to talk
about her as apparently her loss had been quite traumatic to
the veteran.
The history obtained from the veteran, transfer records, and
collateral information obtained from his sister indicated
that the veteran's present difficulty began during the
Christmas holiday period in 1966. The veteran had
participated in a church retreat and, while praying, he had
suddenly seen two brilliant lights. This signaled to the
veteran his receipt of the Holy Spirit, and since that time
until his admission, the veteran had considered himself to
be the Lord "Little Jesus." The veteran did not feel that
God would let him go into the army, although he was
subsequently inducted. Thereafter, he had become so
agitated and belligerent that he had to be put in restraints
and hospitalized.
On mental status examination, the veteran was quite agitated
and preoccupied with teaching the Gospel. He was actively
hallucinating, hearing the voice of the Lord on frequent
occasions, at which times he would demonstrate a gross
voluntary flailing of the arms and on occasion the legs.
Associations were greatly loosened and there was marked
evidence of autism. Affect was generally hostile, judgment
was poor, and insight was completely lacking.
Between early February to mid-March, approximately 20
electroshock treatments were administered, and the veteran's
behavior exhibited a course of clearing with regrouping of
personality and a return to essentially normal behavior by
the end of March. Thereafter, his medications were reduced
and he was transferred to an open ward. Currently, the
veteran's mental status was essentially unremarkable with
the exception of a retrograde amnesia dating from Christmas
1966 which was the time of onset of his psychotic break to
the period of the last four or five shock treatments.
The diagnosis was acute severe paranoid type schizophrenic
reaction. Level of stress during routine military duty was
deemed minimal. Predisposition was marked with a five to
six year history of apparent withdrawal into religious
ideation at times of stress since the death of his mother.
Marked impairment for further duty was noted. It was
determined that the veteran's psychiatric disability had
existed prior to service, and had not been incurred in or
aggravated by service.
A post-diagnosis comment indicated that the veteran
underwent a rapid decompensation beginning approximately 10
days before his induction into service, and that he became
blatantly psychotic within five days after induction. Since
the veteran's service time was extremely short and his
psychosis manifest prior to actual military service due to
the stress of impending induction, it was felt that further
military service would be highly undesirable as he would be
liable to relapse after a short time on active duty.
Separation from service was recommended.
In order to hold that the June 1969 rating decision was
clearly and unmistakably erroneous, it must be concluded
that the evidence of record at the time that decision was
rendered was such that the only possible conclusion based on
the evidence was that service connection was warranted for a
psychiatric disability. 38 C.F.R. § 3.105(a). The evidence
does not support such a conclusion.
The pre-induction report of medical history and examination,
which did not indicate a history of or treatment for a
psychiatric disability, date from more than five months
before entry into service. The veteran was hospitalized
just five days after entrance into service following a rapid
decompensation ending in an acute psychotic break. During
hospitalization, it was determined that the veteran's
psychotic break had commenced prior to service at the time
of a religious retreat, had intensified about 10 days prior
to service, and then became acute and severe within days of
entrance. We find no clear and unmistakable error in the
June 1969 rating decision. The veteran's psychiatric
disability was clearly symptomatic prior to service based on
the medical history given by the veteran and his sister, and
the evidence of record in 1969 did not demonstrate that the
veteran's preexisting disorder was aggravated by the
veteran's very short period of service. The symptoms prior
to and during service were consistent with the presence of a
psychotic disorder. Continuations pf preexisting symptoms
do not in and of themselves, constitute aggravation, absent
an increase in the underlying pathology. We conclude that
the June 1969 rating decision was reasonably supported by
the evidence then of record, and was not clearly and
unmistakably erroneous.
As the veteran did not file a timely appeal from the June
1969 rating decision, that determination became final and is
not subject to revision on the same factual basis. 38
U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). In order to reopen
his claim, the veteran must present or secure new and
material evidence with respect to the claim which has been
disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
New evidence means more than evidence which was not
previously of record. To be new, additional evidence must
be more than merely cumulative. Colvin v. Derwinski, 1
Vet.App. 171, 174 (1991). Similarly, the additional
evidence must be material. That is, there must be a
reasonable possibility that the new evidence, when viewed in
the context of all the evidence, both old and new, would
change the outcome. Smith v. Derwinski, 1 Vet.App. 178
(1991).
The additional evidence in this case submitted since the
June 1969 rating decision consists of ongoing records of
private mental health care treatment from August 1967 to
1990; the testimony of the veteran and three family members
at a November 1990 personal hearing; multiple written
statements from family members and friends from November
1990 and submitted at the personal hearing; documents from
the veteran's high school career; and a January 1991 VA fee
basis psychiatric examination. The testimony of the veteran
and his family, and the multiple written statements, taken
at face value, would indicate that the veteran's psychiatric
disability did not preexist service. Thus, we find that the
additional evidence is new and material, and the veteran's
claim for service connection for a psychiatric disability is
reopened. It must now be determined, whether the cumulative
evidence, both old and new, establishes that the veteran's
psychiatric disability was incurred in or aggravated by
service.
Treatment records from Southern Arizona Mental Health Center
date from August 1967 to June 1990 show care for the
veteran's psychiatric disability.
A March to April 1970 report from Arizona State Hospital
shows a diagnosis of chronic undifferentiated
schizophrenia. The veteran was an inpatient at Kino
Community Hospital in March 1987. The diagnosis was bipolar
disorder. A September 1988 statement from Barry Coe, M.D.,
of Southern Arizona Mental Health Center, indicates that the
veteran had been under his supervision for bipolar illness.
An October 1990 statement from Arizona Center for Clinical
Management indicates that the veteran had a long history of
mental illness.
A January 1991 VA fee basis psychiatric examination resulted
in an impression of bipolar affective disorder.
The veteran and three family members testified at a November
1990 personal hearing. The testimony collectively indicated
that the veteran did not have a preexisting psychiatric
disorder. The veteran testified that he suffered a severe
nervous condition shortly after induction into service. He
stated that he had not been treated for a psychiatric
disability prior to service, but had received continuous
treatment since service. The veteran's sister testified
that the veteran had been a healthy kid, and that he had
lived with her prior to entering the military. She stated
that he had never been sick before service, and that she
felt that stress in service caused his disability. The
veteran's brother-in-law corroborated the sister's
testimony. The sister further indicated that she did not
remember anything wrong with the veteran just prior to
entrance into service, but she added that she couldn't
really recall. Testimony from the veteran's wife was
essentially duplicative of the other witnesses.
At the personal hearing, the veteran submitted a school
report card, a commencement program, a certificate of
perfect attendance for the 1965-66 school year, a letter
award for track, and his high school diploma from June
1966.
Also submitted at the hearing were 16 statements, dated in
November 1990, from family members, school mates, friends,
neighbors, and a high school teacher. All of these
individuals, who knew the veteran prior to service and who
had an extended period to observe him, stated that the
veteran was normal and stable prior to enlistment.
The service medical records show that the veteran was
hospitalized five days after entrance into service with a
severe psychotic break. The veteran's medical history, as
provided by the veteran and more primarily by his sister,
indicated the onset of a psychiatric disability which
predated service by several weeks with a worsening about ten
days before entrance. Given the extremely short period of
training before his psychotic symptoms were noted coupled
with his preservice history, the evidence clearly
demonstrates that the veteran's psychiatric disability
preexisted service. The evidence offers no basis to
conclude that this preexisting condition was aggravated by
service. Moreover, the veteran's religious thinking
reported us being present connot be considered as normal
religiosity. Rather, the veteran reported that he
considered himself to be the Lord "Little Jesus" clearly
this pre-service belief was in the nature of a delusion.
The post service medical evidence, only shows continuing
treatment for a psychosis, variously diagnosed. It does not
impact on the veteran's preservice condition, or demonstrate
whether any preservice disorder was aggravated by service.
We also note that schizophrenia and bipolar disorders are
both listed as psychoses in DSM-III-R. Although the veteran
was diagnosed as a schizophrenic from 1967 to 1977, and
thereafter with a bipolar disorder, the specific diagnosis
of the veteran's psychosis does not alter the essential fact
that the veteran's psychosis preexisted service and was not
aggravated therein. Therefore, consideration of the
veteran's service connection claim for a psychiatric
disability includes all forms of psychotic disability.
The recent personal testimony and written statements are in
conflict with the contemporaneous medical evidence and
statements. During the November 1990 personal hearing, more
than 20 years after the fact, the veterans sister stated
that the veteran was normal prior to service although she
admitted that she could not really remember the time period
just before the veteran's period of service. In view of the
passage of time, we do not find the sister's unclear
recollection surprising. Moreover, it is the period of time
immediately prior to service which the sister did not recall
that is most relevant in this case. Likewise, the testimony
of the veteran's brother-in-law, and the multiple written
statements from November 1990, are distant in time from the
operative events, and do not indicate that the individuals
were in a position to offer personal observations regarding
the veteran's mental condition in December 1966 and the
first week of January 1967. In a similar vein, the
veteran's July 1966 pre-induction examination, and the
documentary evidence from high school, predate the veteran's
immediate pre-service experiences and mental condition.
Thus, these sources lack any significant probative value.
Accordingly, we conclude that the cumulative evidence in
this case demonstrates that the veteran's psychiatric
disability preexisted service and was not aggravated by
service.
ORDER
As the June 1969 rating decision denying service connection
for a psychiatric disability was not clearly and
unmistakably erroneous, and as the cumulative evidence of
record does not establish that a psychiatric disability was
incurred in or aggravated by service, the benefit sought on
appeal is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
D. W. DATLOW, M. D. I. S. SHERMAN
C. W. SYMANSKI
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.